PRINCIPIUL EGALITĂŢII ARMELOR ÎN PROCESUL PENAL ROMÂN – O REALITATE SAU O FICŢIUNE?
THE PRINCIPLE OF EQUALITY OF ARMS IN THE ROMANIAN CRIMINAL TRIAL – REALITY OR FICTION?

Summary/Abstract: In this article, the author examines the principle of equality of arms in the Romanian criminal trial, implicitly deduced from the provisions of art. 6 of ECHR, as a sine qua non requirement of the right to a fair trial. The structure and the content of the article reveal the comments on the jurisdictional practice of the European Court, especially with reference to the equal treatment of the parties during the conduct of proceedings before a court, and none of them is favoured as compared to the other party to the trial, however, many times, the breach of the right to a fair trial in the Romanian criminal trial originates in the manner in which the criminal prosecution was conducted. Although the open nature of the court sessions, the oral and contradictory nature of the debates, the immediacy of producing evidence, the defence represent sufficient guarantees to ensure a fair trial by “the equality of arms”, respectively of the fair trial guarantees granted to the parties and to the prosecution, however, there were enough cases in which the European Court of Human Rights condemned Romania for breaching the right to a fair trial. Even if these decisions concerned certain cases settled according to the provisions of the previous Code of criminal procedure, this does not mean that such abuses cannot be repeated, as some of them may be favoured under the current procedural provisions. In conclusion, the current criminal procedural system named “adversarial” (servile barbarism) is actually a mixt system, in which the inquisitorial elements (the secret and non-contradictory written nature) which prevailed during the criminal prosecution due to the use of special methods and techniques of supervision or research cause the elements of contradictoriality to fade into the background, overshadowing the principle of equality of arms, a fact which often cannot be bucked up during the proceedings. The use of the special methods and techniques of supervision and of the measure of provisional detention rather confers an authoritarian nature to the criminal trial, to the detriment of the right to a fair trial, according to the requirements of the rule of law.

• Details
• Contents